If you landed here after clicking on an ad that says, “Reliable information when we need it most,” welcome – you’ve come to the right place.
That ad was our way of reminding the public that our nation often takes our free press for granted. It’s times like these when we realize how critical trustworthy news reporting is at both the national and local levels, on every possible platform. Sadly, newspapers and news sites are particularly vulnerable to the impact of Covid-19, as Free Speech Center Director Ken Paulson explains in this column.
At the Free Speech Center at Middle Tennessee State University, we’re tracking recent developments involving how the coronavirus pandemic is affecting our First Amendment-guaranteed freedoms of press, speech, assembly, religion and petition.
CNBC reports that the Centers for Disease Control and Prevention “has quietly removed some of its warnings about the coronavirus pandemic and added new language about the First Amendment to its guidance on reopening houses of worship.”
President Trump has demanded that states allow religious gatherings to resume. The new CDC guidelines remove warnings about the danger of coronavirus being spread by singing, chanting and recitation. They urge houses of worship to consult with state authorities about mitigation efforts and to take precautions to protect people at higher risk of catching Covid-19. The guidelines still note that “gatherings present a risk for increasing spread of COVID-19.”
“The federal government may not prescribe standards for interactions of faith communities in houses of worship, and in accordance with the First Amendment, no faith community should be asked to adopt any mitigation strategies that are more stringent than the mitigation strategies asked of similarly situated entities or activities,” the CDC says.
The First Amendment freedom of assembly has run smack-dab into the coronavirus.
In at least two previously locked-down cities where often-violent protests have erupted over the killing of George Floyd in police custody, officials are warning demonstrators to get tested for Covid-19, Fox News reported via MSN.com.
In Atlanta, Mayor Keisha Lance Bottoms, in addition to condemning the rioting, implored protesters to seek testing. “If you were out protesting last night, you probably need to go get a COVID test this week,” she said over the weekend. “There is still a pandemic in America that’s killing black and brown people at higher numbers.”
The New York Times reported that Dr. Theodore Long, who directs New York City’s contract tracing for Covid-19, also urged demonstrators to get tested and to protect themselves when assembling in large groups.
The U.S. Supreme Court has sided with California state restrictions on how many people can attend services at houses of worship amid the Covid-19 pandemic, as reported by National Public Radio and other news sources.
Voting 5-4, the justices turned down a request by the South Bay United Pentecostal Church in Chula Vista that capacity limits be relaxed.
"Although California's guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment," Chief Justice John Roberts said in the opinion.
Meat-processing plants can be hotbeds of coronavirus contagion, which spreads into communities. In North Carolina, local health officials track Covid-19 infections in meat plants and report them to the state Department of Health and Human Services. However, “many aren’t telling the public where those outbreaks occur — and neither is the state,” reports The News & Observer reports in Raleigh.
“DHHS officials say they’re aware of more than 2,000 meatpacking workers who’ve tested positive for COVID-19. They’ve provided both the number of outbreaks and the counties where they’ve occurred. But for weeks, those officials have refused to name plants with reported outbreaks, noting that the agency lacks regulatory oversight over the facilities.”
Fox News has prevailed in a First Amendment lawsuit regarding its coverage of the Covid-19 pandemic, MediaPost and other outlets report.
The suit by WASHLITE alleged that some of the cable news channel’s commentators endangered people by downplaying the seriousness of the coronavirus threat. The Washington League for Increased Transparency and Ethics said the allegedly false or deceptive information broke a Washington state consumer-protection law.
But King County Superior Court Judge Brian McDonald threw out the nonprofit group’s lawsuit on May 27, rejecting WASHLITE’s contention that the First Amendment doesn’t protect cable broadcasters to the same extent as other media, and that it doesn’t protect false statements.
“The law on this issue is more nuanced than suggested by WASHLITE,” MediaPost quoted McDonald as saying.
Fox News had argued that the First Amendment shielded the on-air statements of opinion by commentators Sean Hannity and Trish Regan.
Criticism of a Kansas town’s response to the coronavirus pandemic has led to an accusation that the mayor seeks to suppress public comments, The Wichita Eagle reports.
A woman in Scott City alleges in a lawsuit that Mayor Everett Green has been deleting Facebook comments “critical of the city and its agencies” and replacing them with “self-serving public announcement videos.”
Covid-19 data – what states report and don’t report – continues to be an issue, NBC News reports.
Nursing homes are one big area of dispute in regard to public information.
“In one such example, Arizona officials argued this month they should not reveal the names of facilities with outbreaks because it could give those nursing homes a stigma and could lead to discrimination against them," NBC wrote. "The argument was made in response to a lawsuit from Arizona news outlets demanding the state provide information on COVID-19 cases in nursing homes and other data.
“In Pennsylvania, state officials released such data last week after weeks of delay and in the face of significant pressure.”
Covid-19 has driven the U.S. Supreme Court to hold remote oral arguments by teleconference, with the audio broadcast live, the Freedom Forum's Nata Nott writes.
“While it might seem like a small change, it’s a huge step towards greater transparency and openness, values enshrined by the First Amendment,” Nott says.
Not only is the new access to high court arguments an advance for open government, she observes, but the justices also fittingly have taken up several First Amendment-related cases. These include matters involving robocalls, religious freedom, and the free-expression rights of electors in the Electoral College.
Open government and public access to public records have caught the secrecy virus in the pandemic.
The Associated Press reports that state and local governments are “suspending public records requirements,” saying that officials are too busy with the Covid-19 crisis to respond to requests for records.
“The result is that government secrecy has increased at the same time officials are spending billions of dollars fighting the COVID-19 disease and making major decisions affecting the health and economic livelihood of millions of Americans,” AP wrote.
A U.S. district court in Massachusetts has ruled that the Covid-19 pandemic does not automatically restrict businesses’ right to ask for debts to be paid.
Massachusetts had issued a rule that, for 90 days, phone calls or lawsuits about unpaid debts were deemed unfair and deceptive. The court found nothing unfair or deceptive in the speech of debt collectors who called consumers to demand payment.
“The May 6 opinion in ACA International v. Healey is an important reminder that, even in emergency situations, government must fully and convincingly justify regulations that infringe First Amendment rights,” Forbes reported.
An unusual lawsuit by a small nonprofit in Washington state claims that Fox News and its parent company enjoy no First Amendment protection – nor does any cable broadcaster if its productions air over third-party cable operators.
The Reporters Committee for Freedom of the Press, supporting Fox News, reports that the group known as WASHLITE is suing Fox for allegedly downplaying the coronavirus threat when it first emerged. The group says some Fox News watchers failed to protect themselves from the virus because of the coverage and became sick as a result, thereby putting Fox in violation of the state’s consumer-protection laws.
“The plaintiff is misstating the law and doing so in such a way that would impair speech and press protections for everyone,” the Reporters Committee maintains.
The Voice of America has a Press Freedom watch page.
“Voice of America is committed to press freedom around the world,” the page says. “Many VOA journalists work in countries that restrain free speech and independent journalism. In those countries, local journalists and news media often face threats or other repercussions yet succeed in delivering news and vital information. This page strives to tell their stories.”
Among the offerings today are articles on “Risk and Reporting at the Pandemic’s Front Line” and “Another Gutsy Philippine Media Outlet Fights to Keep Its Operating License.”
VOA describes itself as “the largest U.S. international broadcaster, providing news and information in more than 40 languages to an estimated weekly audience of more than 280 million people.”
What did the World Health Organization tell U.S. health officials about the early stages of the coronavirus pandemic as it began in China? That’s the focus of a Freedom of Information Act lawsuit filed this month, the Washington Examiner reports.
The conservative group Judicial Watch filed suit in U.S. District Court for the District of Columbia on behalf of the Daily Caller News Foundation. Judicial Watch said the lawsuit arose after the Department of Health and Human Services failed to respond to an FOIA request.
The request is for “correspondence of Drs. Anthony Fauci and H. Clifford Lane, the two top health officials at the National Institute of Allergy and Infectious Diseases,” the Examiner wrote, as well as “memos, and reports regarding the WHO; Wuhan, the city in China where the coronavirus outbreak began; and the Chinese government.”
Memphis is excluding journalist Wendi Thomas from its media advisory list for Covid-19 virtual press conferences and other city information “in retaliation for her coverage,” the Reporters Committee for Freedom of the Press reports.
The free-press group is suing the city to get her added.
Thomas is founder, editor and publisher of MLK50: Justice Through Journalism, which has also filed suit. Although RCFP says the city gave no reason for its refusal of access, past email exchanges show that a communications official complained that Thomas’s reporting on Mayor Jim Strickland was “not objective.”
“MLK50: Justice Through Journalism is doing important investigative reporting about issues affecting the residents of Memphis, and it is flatly unconstitutional for the city to disrupt and interfere with Ms. Thomas’s ability to gather and report the news because it doesn’t like the content of her reporting,” said Paul McAdoo, an attorney for the Reporters Committee. “After multiple attempts to get the city and its officials to stop its retaliatory exclusion of Ms. Thomas from the media advisory list, she has been left with no choice but to ask a federal district court to enforce her rights under the First Amendment and Tennessee Constitution,” he added.
A dispute over how Florida is reporting Covid-19 deaths has erupted. The Miami Herald reported that a list of statewide coronavirus fatalities released May 6 was “riddled with holes.”
At issue is a discrepancy between deaths as reported by the state Department of Health and those recorded by the Medical Examiners Commission. News reports say that a month ago, the medical examiners’ numbers were 10% higher than the health department’s.
The Herald wrote: “‘The Department of Health is telling the medical examiners it cannot release this information that the medical examiners have been releasing on a regular basis,’ said Barbara Petersen, president emeritus of the First Amendment Foundation, an open-government watchdog in Tallahassee.”
In an editorial, The Palm Beach Post alleged: “The most recent records in question were previously being released by the Medical Examiners Commission until the [Gov. Ron] DeSantis administration ordered them to stop and redact certain information about the deaths.”
Nieman Reports outlines four ways that local journalism might be saved from extinction by the coronavirus pandemic.
One involves seeking more money from philanthropies. Another, possibly controversial, suggests that a tax on ads that appear on search platforms could raise funds for news outlets, especially those that are struggling.
The article echoes concerns about collapsing revenue for local journalism expressed by Free Speech Center Director Ken Paulson in his April 12 column.
Student journalists face resistance to gaining access to what should be open campus records and meetings during the Covid-19 pandemic, the Student Press Law Center reports.
Among things that student reporters are trying to learn is whether any students who tested positive for coronavirus had recently been on campus. SPLC says college administrators resist providing such information.
A federal judge has upheld California Gov. Gavin Newsom’s stay-home order barring assembly in houses of worship, ABC-TV 7 News reported in Los Angeles.
Ruling in Sacramento, Judge John Mendez said the ban did not violate the First Amendment freedoms of religion and assembly, as claimed by the Cross Culture Christian Center in Lodi.
Countering the church’s argument that the order unconstitutionally prohibited religious gatherings while exempting liquor stores, marijuana dispensaries and others, Mendez said such businesses were open not for purposes of assembly but for individuals to purchase items.
The judge’s ruling, reported ABC-TV 7, said restaurants, concert venues, movie theaters and sports arenas were also ordered shut because, like churches, they involve large gatherings that could further the spread of the virus.
Churches remain in the Covid-19 First Amendment spotlight. The 6th U.S. Circuit Court of Appeals has let stand Kentucky Gov. Andy Beshear’s prohibition of in-person, in-house church services, reports the Louisville Courier Journal.
However, the appeals-court panel also said the state could not prevent the Maryville Baptist Church from conducting drive-in services.
"The breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom," the judges wrote. "But it’s not always easy to decide what is Caesar’s and what is God’s and that’s assuredly true in the context of a pandemic."
Yes, even petition, perhaps the least-appreciated freedom of the five guaranteed by the First Amendment, has caught the coronavirus.
The Cincinnati Enquirer reports that campaigns to put several initiatives on the November ballot in Ohio are at a standstill. The referenda efforts involve recreational marijuana, voting rights, a minimum-wage increase, and others.
“Ballot initiative efforts involve armies of signature collectors – often paid – stationed on city street corners, outside libraries and on festival grounds,” the article notes. “They walk up to strangers, speak with them about the petition and share clipboards and pens.”
Of course all of that is risky in a pandemic.
In the Covid-19 pandemic, “Zoom and its counterparts have become the new electronic amplifier of preference,” writes Ronald K.L. Collins on the Foundation for Individual Rights in Education website. And what follows those and all other new communications advances?
Censorship. But why?
“The answer has to do with the fact that as a new mode of communication becomes more effective, it also becomes more powerful,” Collins writes.
The newsmagazine The Week looks ahead at the kinds of First Amendment lawsuits that could emerge once the virus crisis abates.
“The First Amendment protects our freedoms of religion, speech, press, assembly, and petition, and at least two of those could easily be the subject of post-pandemic lawsuits,” The Week says.
The article says some of the First Amendment litigation could go clear up to the U.S. Supreme Court.
In Florida, reports the Tampa Bay Times, the state Medical Examiners Commission was regularly releasing lists of Covid-19 deaths – until it became apparent that in some instances its numbers exceeded those of the Florida Department of Health.
So state officials stepped in, saying such lists must be reviewed and possibly redacted. The battle over public information continues.
HIPAA – the Health Insurance Portability and Accountability Act – has for some time been something of a hindrance to journalists trying to report on a range of health-related news stories.
HIPAA privacy regulations are intended “to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care and to protect the public’s health and well being,” the act says.
Which sounds good, but in practice it has often meant that, in the name of privacy, some state and local government agencies mistakenly believe they are barred from disclosing important public information in circumstances involving deaths, injuries or illnesses. In Chicago in 2003, for instance, “the press had a difficult time reporting on a deadly porch collapse in late June 2003 because hospitals refused to disclose routine information about the victims,” as this Freedom Forum Institute article says.
Now in the Covid-19 crisis, the Reporters Committee for Freedom of the Press notes that “Reporters and news organizations seeking information related to the COVID-19 pandemic have frequently been told by government agencies and officials, as well as private entities in the health care system (such as nursing homes), that HIPAA prevents them from releasing certain information. But HIPAA’s applicability and scope are often misunderstood, resulting in the public being deprived of important information about the pandemic, including state and local governments’ preparedness and responses.”
RCFP has just published this Journalists’ guide to HIPAA during the COVID-19 health crisis to help journalists navigate questions of what is and isn’t protected health information.
In Arizona, First Amendment experts say the state is unlawfully keeping some Covid-19 information secret.
The information includes statistics and the names and locations of long-term care facilities and prisons that have positive coronavirus cases.
An analysis by the Pew Research Center finds that only 10 states prohibit all in-person religious services and gatherings “in any form.”
See a map showing where your state stands in Pew’s analysis.
One of the 10 states is California, where Pew reports a federal judge last week rejected the request of a group of churches to conduct in-person worship. The churches argued that the state’s ban violated their First Amendment religious freedom.
The struggle between religious liberties and public health continues in Chattanooga, Tenn., where two more lawsuits have been filed claiming First Amendment violations.
At issue are Mayor Andy Berke’s temporary ban on drive-in church services. Berke has since rescinded the ban.
The Reporters Committee for Freedom of the Press has produced a set of resources that outline “recommendations for journalists, legislators, and courts to ensure the press and public’s right of access to government information and proceedings is protected while entities take necessary steps to stop the spread of the coronavirus.”
The RCFP resources delve into court access, public records and meetings, and the effect of social distancing and stay-at-home orders on newsgathering.
NYPD officers confiscated an aerial news photographer’s drone on April 15 as he tried to photograph mass burials of COVID-19 victim’s on Hart Island, Gothamist reports.
George Steinmetz has an FAA drone license, the outlet said, and has shot for National Geographic and The New York Times Magazine.
"Mickey Osterreicher, the general counsel for the National Press Photographers Association, said Steinmetz is the second journalist whose drone was seized trying to photograph Hart Island since the pandemic began. (AP photographer John Minchillo was apparently able to take a few drone pictures of mass burials on Hart Island last week without getting caught.)," Gothamist said.
The push-and-pull between public health and First Amendment freedoms continues in the COVID-19 with the arrest of a woman who helped organize protests against New Jersey’s stay-home order.
NBC New York reports that Kim Pagan, of Toms River, N.J., was arrested. She was reportedly one of the leaders of a small gathering of people in their cars in the capital of Trenton in opposition to Gov. Phil Murphy’s declaration.
A new wrinkle in official reactions to free speech as it pertains to COVID-19 comes from Wisconsin, where a sheriff ordered a teen to remove a post from her Instagram page or face arrest.
In the post, the teen displayed a photo of herself on oxygen in a hospital bed and said she had contracted COVID-19 but was “[w]inning the fight.” Apparently she had coronavirus symptoms but tested negative for the virus. Her school objected to the post, evidently because she had been on a school band trip to Florida for spring break. The school vehemently denied that any students had the virus and asked the sheriff to force removal of the post.
Fearing that she or her parents could end up in jail, the girl in Madison complied. Then the Wisconsin Institute for Law and Liberty sued.
The lawsuit gives more details on what happened.
The First Amendment freedom of assembly – guaranteeing your right to gather in public to show support or opposition on an issue – has found itself in the spotlight of late. In at least two cities, protests against coronavirus stay-home restrictions roused debate about what sorts of demonstrations are allowable during a pandemic.
In Lansing, Mich., thousands of honking cars converged on the state Capitol in opposition to Gov. Gretchen Whitmer’s stringent social-distancing orders, the Lansing State Journal and other outlets reported. Organizers said they designed the “gridlock” protest specifically to keep people in their cars to prevent infection. However, some 150 people got out of their vehicles. One was arrested.
Though expressing support for free speech, Whitmer said such a gathering could endanger lives, prolonging the restrictions. “The massive demonstration highlighted the tension between Whitmer's goal of saving lives and limiting the spread of COVID-19 as well as protesters' worries about avoiding prolonged economic damage and what they argue are inconsistent rules,” The Detroit News reported.
A similar protest in Raleigh, N.C., though not involving cars, also resulted in one arrest, and prompted this statement by the police department: “Protesting is a non-essential activity.”
A poor choice of words, no doubt. But, as you’ll see below in earlier controversies over church attendance, generally applicable laws may lawfully restrict First Amendment freedom of assembly in some ways, in the interest of public health and safety. Here’s a fact-check by The Charlotte Observer.
April 15 ...
Yesterday, The Hill reported that President Trump’s re-election campaign had sued Wisconsin TV station WJFW-NBC, an NBC affiliate in Rhinelander, for airing a liberal group’s ad purporting to show that Trump had called coronavirus a “hoax.”
Calling the ad a “fraud” because Trump never called the virus a hoax, the defamation lawsuit “seeks unspecified monetary damages and legal fees,” The Hill said. It is noteworthy that generally in cases like this, First Amendment experts say, the suit is filed against the entity that produced the ad, not the news outlet that broadcasts it. WJFW had nothing to do with the ad’s contents.
“It’s unusual for a plaintiff to sue the station rather than the advertiser," Free Speech Center Director Ken Paulson said. "Yes, this ad is misleading, as most political ads are, but this lawsuit has the potential to chill political speech at the retail level.”
More trouble over religious gatherings
Also yesterday, three California pastors sued state officials over orders prohibiting in-person church services and other large gatherings owing to the COVID-19 pandemic. CNN quoted the lawsuit as alleging deprivation of “fundamental rights protected by the U.S. and California Constitutions, including freedom of religion, speech, and assembly, and due process and equal protection under the law.”
Some churches have defied such directives in California and other states, continuing to hold large-group services. In some cases parishioners have later reported coronavirus infections.
Does restricting religious gatherings violate the First Amendment freedom of religion? MTSU First Amendment scholar John R. Vile explains that “in times of genuine public health crises, churches, synagogues, and mosques are no more exempt from neutral and generally applicable laws designed to protect health than are any other institutions.”
April 13 …
See you in church?
The First Amendment protects our freedom to worship – or not – in the faith we choose. As noted above, the freedoms of religion and assembly have been heavily implicated by orders prohibiting large gatherings in many places.
In Kentucky, Sen. Rand Paul caused a stir by attacking Gov. Andy Beshear’s order that Easter churchgoers be quarantined afterward. … The Christian Post reported that a small minority of pastors cite the First Amendment in refusing to close their churches or suspend worship services. One says it makes no sense to let big-box stores stay open seven days a week, but close the churches … and in Greenville, Miss., the mayor went “beyond the governor’s shelter-in-place order,” reported the Delta Democrat-Times, in forbidding drive-in churches. A number of people parked in the Temple Baptist Church’s lot for a service were handed $500 tickets.
Censoring the news
The First Amendment exists so that we the American people may express their political views, and may obtain the information we need to form them.
Regarding “reliable information,” as the Free Speech Center’s ad says: How do we know what’s reliable and what isn’t? By having the broadest range of information available to sift through so we can decide what to trust. That means listening to many sides of many issues. It means evaluating sources. It means evaluating evidence.
So when a nonprofit group misleadingly calling itself “Free Press” filed a complaint with the Federal Communications Commission demanding that press coverage of President Trump’s virus-response team’s news briefings be “investigated,” the FCC rightly said no. Chairman Ajit Pai wrote on April 6, “Under my leadership, the @FCC has always defended Americans’ 1st Amendment freedoms, including freedom of the press. That’s why we’ve rejected a special interest’s demand that we investigate broadcasters for their editorial judgments.” (See the FCC decision.)
“In short,” added Pai, “we will not censor the news.”
To combat allegedly inaccurate information being purveyed by Trump, “Free Press” argued that the FCC should either prevent broadcasters from carrying the news briefings live, or slap a disclaimer on them. But as the FCC said, the government should never be the one deciding what news outlets may and may not cover, or what they should or should not say about what they’re covering.
Apparently what set “Free Press” and others off were Trump’s claims about how promising the malaria drug hydroxychloroquine might be, in combination with the antibiotic azithromycin, in treating COVID-19. Such treatment is as yet “unproven,” as many news organizations report. But even Trump said that “it may work, and it may not work.” Several governors, Democrats and Republicans, have allowed its use in their states, at least one, Michigan Gov. Gretchen Whitmer, doing so after initially forbidding doctors from prescribing it. And at the live press conferences that “Free Press” wants to restrict, Trump comes under intensely skeptical questioning by reporters.
You’ll notice as you look at coverage just of hydroxychloroquine that some news stories emphasize its unproven effectiveness against coronavirus, while others call it promising. That’s to be expected. Different reporters and editors see things differently. That’s what a free press is all about, and it’s for us as news readers and watchers to consider many viewpoints. After all, don’t doctors often disagree?
On reliable information – and withholding it
If press freedom is to mean anything, our ability to receive public information is crucial, especially now. Unfortunately, some state governments have misguidedly sought to withhold some information, thinking they’re protecting our privacy.
In Massachusetts, Gov. Charlie Baker has refused to release town-by-town COVID-19 data, citing a danger of “stigma” and “cyberbullying” against people who might find themselves inadvertently and perhaps erroneously identified as having the disease. Tennessee was also restricting county-specific data for a time, before relenting.
If you live in an area hit by the virus, and you probably do, don’t you want to know how prevalent it is in your county or town? Not so you can bully people who have it, of course, but so that you can take the best possible precautions given the extent of the threat. “Privacy” and what people might say about someone on Twitter seem small concerns in a pandemic.
Stay tuned as we update this page with further developments.
Brian J. Buchanan is a journalist and the coordinator of the Free Speech Center’s 1 for All campus campaign.